Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0004
- Subject:
- Political Science, European Union
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of ...
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The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.Less
The evolution is charted, through adjudication, of the rules governing sex equality in European Community (EC) law. The first section, ‘The Normative Structure’, provides an overview of the Treaty of Rome rules and secondary legislation that constitute the domain of sex equality, while the second examines how Art. 141 (which provides that male and female workers shall receive equal pay for equal work) evolved once it had been constitutionalized by the European Court of Justice. Section III, ‘Judicialization: The Court and the Legislator’, focuses on the relationship between the Court, its case law on sex equality, and the production of directives by the EC legislator; the impact is also briefly discussed of the Court's rulemaking on national judicial and legislative processes; topics included are indirect discrimination, occupational pensions, pregnancy and maternity rights. In the fourth section, ‘Adjudicating Sex Equality Law’, an analysis is made of the aggregate data on litigation and adjudication in the field, focusing on how precedent‐based lawmaking has organized the development of this area. The conclusion addresses a range of theoretical issues.
Gráinne de Búrca
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199257409
- eISBN:
- 9780191600951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019925740X.003.0003
- Subject:
- Political Science, European Union
Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the ...
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Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.Less
Considers the role that the European Court of Justice (ECJ) has played in the evolution of EU law, and places recent developments in the context of longer‐term trends in the jurisprudence of the Court. Rather than debating the question of what kind of institutional actor the ECJ is within the EU political system, the chapter proceeds on the premise that the Court is a purposive actor that nonetheless considers itself to be constrained in significant ways by the text of the EC Treaties, by its own previous body of case law, and in different ways by the political and social context within which it operates. Reflects on the polity‐shaping impacts of the case law of the ECJ, including the effects on EU and national political organizations and on the notion of a European citizen, and, finally, how the Court may or may not be responding to the changing nature of EU law. Various case studies on case law are included. The four sections of the chapter are: Introduction; The Court and the Political Decision‐Making Bodies: Policing of the Bounds of EU Power; The Court and the Individual; and Conclusion.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0003
- Subject:
- Political Science, European Union
The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about ...
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The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.Less
The previous chapter showed how transnational activity, the adjudication of the European Community (EC) law, and EC lawmaking had developed symbiotically to determine much of what is important about European integration. This chapter provides a more detailed sectoral account of how the adjudication of one class of trading disputes gradually, but authoritatively, undermined the intergovernmental aspects of the EC, while enhancing the polity's supranational, or federal, character. Assesses the impact of adjudicating the freer movement of goods provisions of the Treaty of Rome on integration and supranational governance, focusing on the problem of non‐tariff barriers, as governed by Arts. 28–30 (EC). Proceeds as follows: first, the treaty rules on intra‐EC trade are examined, hypotheses derived about how the domain could be expected to evolve, and the argument advanced is contrasted with alternatives; second, in a section ‘Judicial Governance and Market‐Building’, the emergence is tracked of the basic doctrinal framework (the Dassonville framework) governing the domain, an analysis made of the aggregate data on adjudication in the sector, and the impact traced of the European Court of Justice's case law on the decision‐making of other actors, including the European Commission and Member State governments; third, the mutation of the framework that occurred in the 1990s is discussed – an event that was heavily conditioned by the endogenous development of the law itself; the chapter concludes with an assessment of the findings in light of the pertinent scholarly debates about the impact of the European legal system on the greater course of market‐building and political integration.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0005
- Subject:
- Political Science, European Union
An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of ...
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An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of the Single European Act (SEA) of 1985, when the Member States formally recognized the EC's legislative authority in the field, and the strengthening of these competences in 1992 by the Treaty of European Union and in 1997 by the Treaty of Amsterdam. Partly owing to lack of Treaty basis, and partly because of factors to be discussed in this chapter, the influence of the legal system on the development of the EC's policy has not been as pervasive as it has been for the main categories of law and policy established under the original Rome Treaty. The first section, ‘The Policy Domain’ provides a brief overview of the evolution of environmental protection as a supranational field of governance. The second focuses on the attempts of the European Court of Justice (ECJ) to manage the relationship between freedom of trade (free movement of goods) and the EC's environmental policies, showing that this case law served to legitimize the EC's competences in the field before the SEA. The third section assesses the Court's interactions with the EC legislator and the Member States from the perspective of delegation theory, examining both what happens when the ECJ acts as a trustee of the Treaty, and when it functions as an agent of the legislator, i.e. when it is asked to resolve disputes about the meaning of provisions contained in EC statutes; no evidence was found that the ECJ regularly defers to the interests of powerful Member States, rather, it has pursued the ‘Community's interest’, broadly conceived, even when engaging in routine statutory interpretation.Less
An examination is made of the emergence and institutionalization of a new policy domain for the European Community (EC): environmental protection – a domain that did not exist before the signing of the Single European Act (SEA) of 1985, when the Member States formally recognized the EC's legislative authority in the field, and the strengthening of these competences in 1992 by the Treaty of European Union and in 1997 by the Treaty of Amsterdam. Partly owing to lack of Treaty basis, and partly because of factors to be discussed in this chapter, the influence of the legal system on the development of the EC's policy has not been as pervasive as it has been for the main categories of law and policy established under the original Rome Treaty. The first section, ‘The Policy Domain’ provides a brief overview of the evolution of environmental protection as a supranational field of governance. The second focuses on the attempts of the European Court of Justice (ECJ) to manage the relationship between freedom of trade (free movement of goods) and the EC's environmental policies, showing that this case law served to legitimize the EC's competences in the field before the SEA. The third section assesses the Court's interactions with the EC legislator and the Member States from the perspective of delegation theory, examining both what happens when the ECJ acts as a trustee of the Treaty, and when it functions as an agent of the legislator, i.e. when it is asked to resolve disputes about the meaning of provisions contained in EC statutes; no evidence was found that the ECJ regularly defers to the interests of powerful Member States, rather, it has pursued the ‘Community's interest’, broadly conceived, even when engaging in routine statutory interpretation.
E. Kay, M. Tisdall, and F. Morrison
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.003.0011
- Subject:
- Law, Family Law, Human Rights and Immigration
Children's participation generally — and children's participation in court proceedings when their parents divorce or separate specifically — has gained considerable policy and practice prominence. In ...
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Children's participation generally — and children's participation in court proceedings when their parents divorce or separate specifically — has gained considerable policy and practice prominence. In 1995, the Children (Scotland) Act was passed; it was the most radical, across UK children's legislation, in specifying the requirement for children's participation. The 1995 Act remains the foundation of current Scottish family law, with certain amendments in regards to contested contact. In 1999, the then Scottish Executive commissioned the first study on the relevant provisions. The study analysed all related legislation and guidance, reported case law up until 2001, and undertook a feasibility study on investigating children's experiences of their participation. This chapter explores whether progress has been made since the study was undertaken. After summarizing the relevant legal provisions, an updated review of reported case law is undertaken. It then presents provisional findings from research with children about their participation in the contested area of child contact where there is a history of domestic abuse. The analysis concentrates particularly on the processes of participation and the ‘weight’ given to children's views, with accompanying consideration of how children and childhood are constructed within these.Less
Children's participation generally — and children's participation in court proceedings when their parents divorce or separate specifically — has gained considerable policy and practice prominence. In 1995, the Children (Scotland) Act was passed; it was the most radical, across UK children's legislation, in specifying the requirement for children's participation. The 1995 Act remains the foundation of current Scottish family law, with certain amendments in regards to contested contact. In 1999, the then Scottish Executive commissioned the first study on the relevant provisions. The study analysed all related legislation and guidance, reported case law up until 2001, and undertook a feasibility study on investigating children's experiences of their participation. This chapter explores whether progress has been made since the study was undertaken. After summarizing the relevant legal provisions, an updated review of reported case law is undertaken. It then presents provisional findings from research with children about their participation in the contested area of child contact where there is a history of domestic abuse. The analysis concentrates particularly on the processes of participation and the ‘weight’ given to children's views, with accompanying consideration of how children and childhood are constructed within these.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.003.0003
- Subject:
- Law, EU Law, Environmental and Energy Law
This chapter analyzes the extent to which the ECJ's case law, the Aarhus Convention, and secondary Community legislation, ensure effective judicial enforcement of EC environmental law in national ...
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This chapter analyzes the extent to which the ECJ's case law, the Aarhus Convention, and secondary Community legislation, ensure effective judicial enforcement of EC environmental law in national courts. The chapter is organized as follows. Section 2 provides a general analysis of the principles arising from the ECJ's case law on procedures and remedies with a view to determining their relevance for the enforcement of EC environmental law. Section 3 introduces the Aarhus Convention and the secondary legislation implementing the Aarhus Convention. This section also analyzes the relations between the judicial protection guarantees that follow from the EC's case law, and the requirements embodied in the legislation implementing the Aarhus Convention. In light of these findings, the subsequent sections examine the requirements Community law places on Member States as regards the distinct elements that make out the anatomy of access to justice in environmental matters.Less
This chapter analyzes the extent to which the ECJ's case law, the Aarhus Convention, and secondary Community legislation, ensure effective judicial enforcement of EC environmental law in national courts. The chapter is organized as follows. Section 2 provides a general analysis of the principles arising from the ECJ's case law on procedures and remedies with a view to determining their relevance for the enforcement of EC environmental law. Section 3 introduces the Aarhus Convention and the secondary legislation implementing the Aarhus Convention. This section also analyzes the relations between the judicial protection guarantees that follow from the EC's case law, and the requirements embodied in the legislation implementing the Aarhus Convention. In light of these findings, the subsequent sections examine the requirements Community law places on Member States as regards the distinct elements that make out the anatomy of access to justice in environmental matters.
Göran Lind
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195366815
- eISBN:
- 9780199867837
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195366815.003.0004
- Subject:
- Law, Family Law
This chapter examines common law marriage in the United States. Topics discussed include the origins of common law marriage, American reception of common law marriage in the 1800s and early 1900s, ...
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This chapter examines common law marriage in the United States. Topics discussed include the origins of common law marriage, American reception of common law marriage in the 1800s and early 1900s, the peculiarities of American common law marriage, and the reasons behind the recognition of common law marriage in the United States. The initial criticism against American common law marriage is briefly considered.Less
This chapter examines common law marriage in the United States. Topics discussed include the origins of common law marriage, American reception of common law marriage in the 1800s and early 1900s, the peculiarities of American common law marriage, and the reasons behind the recognition of common law marriage in the United States. The initial criticism against American common law marriage is briefly considered.
Terri Givens and Adam Luedtke
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199257409
- eISBN:
- 9780191600951
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019925740X.003.0014
- Subject:
- Political Science, European Union
Focusses on EU immigration policy. While providing an overview of the current status of EU immigration policy, Givens and Luedtke also examine the various national‐level factors from party politics ...
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Focusses on EU immigration policy. While providing an overview of the current status of EU immigration policy, Givens and Luedtke also examine the various national‐level factors from party politics to citizen action that can influence the direction and shape of new EU laws. The analysis reveals that harmonization is more difficult in areas of immigration policy that are highly politicized at the national level. After an introduction, the second section of the chapter proposes a model of how EU immigration policy is harmonized, and how this harmonization can be blocked or restricted. The third section traces the history of EU immigration policy harmonization, focussing on European Court of Justice case law in respect of Third‐country nationals, and the fourth concludes.Less
Focusses on EU immigration policy. While providing an overview of the current status of EU immigration policy, Givens and Luedtke also examine the various national‐level factors from party politics to citizen action that can influence the direction and shape of new EU laws. The analysis reveals that harmonization is more difficult in areas of immigration policy that are highly politicized at the national level. After an introduction, the second section of the chapter proposes a model of how EU immigration policy is harmonized, and how this harmonization can be blocked or restricted. The third section traces the history of EU immigration policy harmonization, focussing on European Court of Justice case law in respect of Third‐country nationals, and the fourth concludes.
Pål Wennerås
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199229017
- eISBN:
- 9780191711268
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199229017.001.0001
- Subject:
- Law, EU Law, Environmental and Energy Law
It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that ...
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It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that the enforcement deficit is due to the fact that the environment is distinct from other fields of Community law. EC environmental law does not normally confer rights on individuals and may therefore not be judicially enforced in the same manner as rules concerning the internal market, competition and gender discrimination. This book explores and challenges this assumption. Drawing from constitutional aspects of EC law, the book examines to what extent the general case law on procedures and remedies may be transposed to the field of environment, whilst at the same time taking stock of the existing environmental case law and the distinctive features of environmental legislation. In a critical exposition and assessment of 50 years of jurisprudence by the European Court of Justice as well as recent legislative developments, the book explores the potential of enforcement of environmental law through lawsuits by individuals as well as the European Commission. By demonstrating that the environment is not so different from other fields of law in terms of rights and remedies, the book provides not only new insights to the enforcement of EC environmental law but also to the central characteristics of Community constitutional law.Less
It is widely accepted that the future development of environmental law depends not on further legislation, but on more effective enforcement. Within the EC legal system, the conventional view is that the enforcement deficit is due to the fact that the environment is distinct from other fields of Community law. EC environmental law does not normally confer rights on individuals and may therefore not be judicially enforced in the same manner as rules concerning the internal market, competition and gender discrimination. This book explores and challenges this assumption. Drawing from constitutional aspects of EC law, the book examines to what extent the general case law on procedures and remedies may be transposed to the field of environment, whilst at the same time taking stock of the existing environmental case law and the distinctive features of environmental legislation. In a critical exposition and assessment of 50 years of jurisprudence by the European Court of Justice as well as recent legislative developments, the book explores the potential of enforcement of environmental law through lawsuits by individuals as well as the European Commission. By demonstrating that the environment is not so different from other fields of law in terms of rights and remedies, the book provides not only new insights to the enforcement of EC environmental law but also to the central characteristics of Community constitutional law.
Alec Stone Sweet
- Published in print:
- 2004
- Published Online:
- January 2005
- ISBN:
- 9780199275533
- eISBN:
- 9780191602009
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019927553X.003.0006
- Subject:
- Political Science, European Union
The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: ...
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The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.Less
The conclusion addresses certain major features of the overall course of European integration in light of the book's priorities and findings, indicating that the book has pursued two main objectives: the first, to demonstrate that the course of European integration has been profoundly shaped by a system of adjudication managed by the European Court of Justice (ECJ); the second, to test a range of propositions about how the legal system operates, and to trace the effects of the ECJ's case law on policy outcomes, and on the policy‐relevant behaviour of nonjudicial actors. In some areas, including free movement of goods and sex equality, judges – not governments or legislatures or the Member States – have broadly determined the paths along which institutions evolved. Judicial supremacy partly inheres in the ECJ's status as trustee, partly in the dynamics of the constitutionalization process provoked by the ECJ in the mid‐1960s, and partly by the propagation and diffusion of specific techniques of judicial governance, such as those associated with precedent‐based balancing standards. Every chapter of the book presents evidence refuting claims that the ECJ and the national courts operate as relatively perfect ‘agents’ of the Member States or national governments, and shows that the activities of supranational organizations such as the ECJ routinely produce ‘unintended consequences, from the perspective of those who have designed and redesigned the EC. The author concludes that he does not see how theories that make predictions about how integration has proceeded from institutional design can be rescued.
Piet Eeckhout
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199606634
- eISBN:
- 9780191729560
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606634.003.0009
- Subject:
- Law, EU Law
This chapter examines the various legal effects which different forms of international law produce in the EU legal order. The task of discovering and determining those effects has fallen almost ...
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This chapter examines the various legal effects which different forms of international law produce in the EU legal order. The task of discovering and determining those effects has fallen almost exclusively on the Court of Justice. The case law in this area is very much the counterpart of the case law on the direct effect and supremacy of the Treaties and of internal legislation, the defining features of European constitutionalism.Less
This chapter examines the various legal effects which different forms of international law produce in the EU legal order. The task of discovering and determining those effects has fallen almost exclusively on the Court of Justice. The case law in this area is very much the counterpart of the case law on the direct effect and supremacy of the Treaties and of internal legislation, the defining features of European constitutionalism.
Vassilios Skouris
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0032
- Subject:
- Law, Legal History
This chapter discusses the balancing of the duty of loyal cooperation of national judges under Article 10 EC with the so-called national procedural autonomy. It provides a general overview of the ...
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This chapter discusses the balancing of the duty of loyal cooperation of national judges under Article 10 EC with the so-called national procedural autonomy. It provides a general overview of the principle of national procedural autonomy and the duty of loyal cooperation. It then outlines the specific duties and obligations of national judges in the application of EC law as they result from the ECJ's classic case law. In the main part, the chapter examines some recent judgments in which the balancing exercise between the duty of loyal cooperation and national procedural autonomy has proven to be quite delicate and has attracted much praise but also criticism from academics, lawyers, and judges. The concluding remarks aims at placing this recent case law in its proper perspective.Less
This chapter discusses the balancing of the duty of loyal cooperation of national judges under Article 10 EC with the so-called national procedural autonomy. It provides a general overview of the principle of national procedural autonomy and the duty of loyal cooperation. It then outlines the specific duties and obligations of national judges in the application of EC law as they result from the ECJ's classic case law. In the main part, the chapter examines some recent judgments in which the balancing exercise between the duty of loyal cooperation and national procedural autonomy has proven to be quite delicate and has attracted much praise but also criticism from academics, lawyers, and judges. The concluding remarks aims at placing this recent case law in its proper perspective.
Rebecca R French
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199580910
- eISBN:
- 9780191723025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580910.003.0005
- Subject:
- Law, Comparative Law
Legal anthropologists generally ignore the actual law cases of the legal profession; that is, they don't turn their lens on basic ‘black-letter law’ as a fieldsite. In short, anthropologists don't ...
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Legal anthropologists generally ignore the actual law cases of the legal profession; that is, they don't turn their lens on basic ‘black-letter law’ as a fieldsite. In short, anthropologists don't generally do ethnography in the ordinary case law reports, thereby missing some of the advantages this might bring: it is a project that both scholars and students can do from their computer desks; it allows them to look at the real world of law and legal practice; and it can produce interesting results that are usable by both practitioners and a range of academics. This chapter shows that such a case law examination will reveal exciting areas for further research.Less
Legal anthropologists generally ignore the actual law cases of the legal profession; that is, they don't turn their lens on basic ‘black-letter law’ as a fieldsite. In short, anthropologists don't generally do ethnography in the ordinary case law reports, thereby missing some of the advantages this might bring: it is a project that both scholars and students can do from their computer desks; it allows them to look at the real world of law and legal practice; and it can produce interesting results that are usable by both practitioners and a range of academics. This chapter shows that such a case law examination will reveal exciting areas for further research.
Michael Fishbane
- Published in print:
- 1988
- Published Online:
- November 2003
- ISBN:
- 9780198266990
- eISBN:
- 9780191600593
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198266995.003.0006
- Subject:
- Religion, Judaism
Introduction to the unit on legal exegesis begins with a presentation of the scope and content of Biblical law as a factor in the emergence of exegesis. Such factors as verbal, semantic, and ...
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Introduction to the unit on legal exegesis begins with a presentation of the scope and content of Biblical law as a factor in the emergence of exegesis. Such factors as verbal, semantic, and syntactic ambiguity of legal formulations; the feature of legal ellipses and gaps in the legal codes; the occurrence of repetitions and contradictions in the various legal corpora; and the phenomenon of ad hoc cases that do not clearly relate to existing rules and practices, are all noted as elements that sponsor interpretation among ongoing inheritors of the legal tradition in ancient Israel. Introductory comments on the various legal genres and types are offered.Less
Introduction to the unit on legal exegesis begins with a presentation of the scope and content of Biblical law as a factor in the emergence of exegesis. Such factors as verbal, semantic, and syntactic ambiguity of legal formulations; the feature of legal ellipses and gaps in the legal codes; the occurrence of repetitions and contradictions in the various legal corpora; and the phenomenon of ad hoc cases that do not clearly relate to existing rules and practices, are all noted as elements that sponsor interpretation among ongoing inheritors of the legal tradition in ancient Israel. Introductory comments on the various legal genres and types are offered.
Ioana Knoll-Tudor
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199578184
- eISBN:
- 9780191722561
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578184.003.0014
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter scrutinizes the possible interactions between human rights and investor-state arbitration focussing on the role that the fair and equitable treatment (FET) standard might play in such ...
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This chapter scrutinizes the possible interactions between human rights and investor-state arbitration focussing on the role that the fair and equitable treatment (FET) standard might play in such interaction. The FET standard is found in most of the 2,000 Bilateral Investment Treaties (BITs) signed between more than 170 countries in the world as well as in some multilateral and regional conventions, it is therefore important to first establish the sources and content of this standard. The first part of this chapter inquires into the conventional and customary sources of the FET and discusses the concrete situations in which the FET standard has already been applied. The second part focuses on the relationship between FET and HR norms. It enquires into the rationale of applying human rights norms in international investment law cases since most BITs do not contain a specific reference to HR. It then specifically focuses on the scenarios in which FET may interact with HR norms.Less
This chapter scrutinizes the possible interactions between human rights and investor-state arbitration focussing on the role that the fair and equitable treatment (FET) standard might play in such interaction. The FET standard is found in most of the 2,000 Bilateral Investment Treaties (BITs) signed between more than 170 countries in the world as well as in some multilateral and regional conventions, it is therefore important to first establish the sources and content of this standard. The first part of this chapter inquires into the conventional and customary sources of the FET and discusses the concrete situations in which the FET standard has already been applied. The second part focuses on the relationship between FET and HR norms. It enquires into the rationale of applying human rights norms in international investment law cases since most BITs do not contain a specific reference to HR. It then specifically focuses on the scenarios in which FET may interact with HR norms.
Chibli Mallat
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199230495
- eISBN:
- 9780191710926
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199230495.003.0008
- Subject:
- Law, Comparative Law
This chapter discusses civil law, which is understood as the law of obligations and torts. The chapter follows through the two basic model codes which are represented by the Ottoman Majalla and the ...
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This chapter discusses civil law, which is understood as the law of obligations and torts. The chapter follows through the two basic model codes which are represented by the Ottoman Majalla and the Egyptian Civil Code, and which have dominated the law of daily transactions from the late 19th century to date. These legal ‘monuments’ made a formal break with a tradition of Islamic law that did not know any serious codification. The chapter considers whether the break was only formal, as it attempts to frame in legal terms the challenge offered to this codification by those who present local codes as alien to the substance of a deep-rooted tradition.Less
This chapter discusses civil law, which is understood as the law of obligations and torts. The chapter follows through the two basic model codes which are represented by the Ottoman Majalla and the Egyptian Civil Code, and which have dominated the law of daily transactions from the late 19th century to date. These legal ‘monuments’ made a formal break with a tradition of Islamic law that did not know any serious codification. The chapter considers whether the break was only formal, as it attempts to frame in legal terms the challenge offered to this codification by those who present local codes as alien to the substance of a deep-rooted tradition.
Stephen Calkins
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195372823
- eISBN:
- 9780199871773
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195372823.003.0012
- Subject:
- Economics and Finance, Behavioural Economics
This paper focuses on case law concerning vertical arrangements and exclusive dealing law. It begins by providing an overview of older Supreme Court case law. It then examines appellate court's ...
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This paper focuses on case law concerning vertical arrangements and exclusive dealing law. It begins by providing an overview of older Supreme Court case law. It then examines appellate court's alterations to standards regarding exclusive dealing and vertical arrangements in Microsoft and Dentsply.Less
This paper focuses on case law concerning vertical arrangements and exclusive dealing law. It begins by providing an overview of older Supreme Court case law. It then examines appellate court's alterations to standards regarding exclusive dealing and vertical arrangements in Microsoft and Dentsply.
Elisa Morgera
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199558018
- eISBN:
- 9780191705311
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199558018.003.0006
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter provides an analysis of the growing case law on the environmentally irresponsible conduct of private companies. It first concentrates on national courts facing claims of international ...
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This chapter provides an analysis of the growing case law on the environmentally irresponsible conduct of private companies. It first concentrates on national courts facing claims of international environmental NGOs and victim groups calling for the direct application of international environmental rules upon private corporations. It then turns to the international level, assessing the extent and the basis upon which human rights monitoring bodies consider the conduct of private companies. The chapter also analyses the legal arguments put forward in the pleadings before national and international courts, and concludes with an assessment of the contribution of this practice to the definition of corporate environmental accountability.Less
This chapter provides an analysis of the growing case law on the environmentally irresponsible conduct of private companies. It first concentrates on national courts facing claims of international environmental NGOs and victim groups calling for the direct application of international environmental rules upon private corporations. It then turns to the international level, assessing the extent and the basis upon which human rights monitoring bodies consider the conduct of private companies. The chapter also analyses the legal arguments put forward in the pleadings before national and international courts, and concludes with an assessment of the contribution of this practice to the definition of corporate environmental accountability.
Lawrence Collins
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199270583
- eISBN:
- 9780191710230
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199270583.003.0012
- Subject:
- Law, Legal History
Francis A. Mann was a solicitor in full-time practice who nevertheless had a more profound influence on the development of modern English case law than almost any academic writer. A discussion on ...
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Francis A. Mann was a solicitor in full-time practice who nevertheless had a more profound influence on the development of modern English case law than almost any academic writer. A discussion on Mann's contribution to the case law is particularly appropriate because he came to be a devoted admirer of the English legal system and its creative use of precedent. In addition, Mann was one of the last survivors of those outstanding lawyers who were forced to flee Germany (and later, Austria) after the advent of Adolf Hitler made the position of Jews, not only in their personal lives but also in academic, professional, and judicial life, intolerable. This chapter chronicles the life of Mann as a law practitioner in Germany and England, his handling of cases related to public international law and international monetary law, his work on the legal aspect of money, the doctrine of jurisdiction in international law, the law governing state contracts, problems faced in the courts in cases involving foreign affairs, conflict of laws, and arbitration.Less
Francis A. Mann was a solicitor in full-time practice who nevertheless had a more profound influence on the development of modern English case law than almost any academic writer. A discussion on Mann's contribution to the case law is particularly appropriate because he came to be a devoted admirer of the English legal system and its creative use of precedent. In addition, Mann was one of the last survivors of those outstanding lawyers who were forced to flee Germany (and later, Austria) after the advent of Adolf Hitler made the position of Jews, not only in their personal lives but also in academic, professional, and judicial life, intolerable. This chapter chronicles the life of Mann as a law practitioner in Germany and England, his handling of cases related to public international law and international monetary law, his work on the legal aspect of money, the doctrine of jurisdiction in international law, the law governing state contracts, problems faced in the courts in cases involving foreign affairs, conflict of laws, and arbitration.
Pasquale De Sena
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199578184
- eISBN:
- 9780191722561
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578184.003.0010
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter argues that the relationship between ECtHR case law relating to protection of property rights and the traditional principles of international law on foreign investments swings between a ...
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This chapter argues that the relationship between ECtHR case law relating to protection of property rights and the traditional principles of international law on foreign investments swings between a tendency to apply these principles, adapting them to the frame of reference of the Convention, and a tendency to overcome them. The first trend displays itself when the rights of property come to the fore viewed as purely economic rights. It concerns the notion of property itself, the ‘corporate veil’ principle, and the determination of the amount of compensation to be awarded in cases of expropriation. The second trend can be found when violations of other protected rights of considerable social (non-economic) interest come to the fore, together with interferences with the right of property. In such cases, the Court has tended both to extend the concept of property and to judge disproportionate these interferences in the light of the social relevance of the individual interests at stake.Less
This chapter argues that the relationship between ECtHR case law relating to protection of property rights and the traditional principles of international law on foreign investments swings between a tendency to apply these principles, adapting them to the frame of reference of the Convention, and a tendency to overcome them. The first trend displays itself when the rights of property come to the fore viewed as purely economic rights. It concerns the notion of property itself, the ‘corporate veil’ principle, and the determination of the amount of compensation to be awarded in cases of expropriation. The second trend can be found when violations of other protected rights of considerable social (non-economic) interest come to the fore, together with interferences with the right of property. In such cases, the Court has tended both to extend the concept of property and to judge disproportionate these interferences in the light of the social relevance of the individual interests at stake.
